Mcgregor v. CitiFinancial Canada, Inc., 2009 HRTO 1196

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Karlene Mcgregor

Applicant

-and-

CitiFinancial Canada, Inc.

Respondent

INTERIM DECISION

Adjudicator: Faisal Bhabha

Date: August 4, 2009

Citation: 2009 HRTO 1196

Indexed as: Mcgregor v. CitiFinancial

BACKGROUND

1The purpose of this Interim Decision is to address the respondent’s request that the Application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on May 1, 2009, be dismissed for lack of jurisdiction. The respondent requests dismissal of the Application, pursuant to section 34(11) of the Code, which bars a person from making an Application to the Tribunal where there is an ongoing civil claim in the courts which seeks remedies for discrimination arising from the same events. Alternatively, the respondent asks that the Application be deferred pending the completion of the civil action.

2The Application alleges discrimination on the basis of disability in employment. The respondent has not filed a complete Response. The Response, filed on July 9, 2009, advises that the applicant filed a Statement of Claim (the “Claim”) in the Superior Court alleging that she had been wrongfully dismissed. The Claim was issued by the Court on February 3, 2009. The respondent argues that the facts on which the two proceedings are based are identical, and make similar claims for relief.

3The applicant had until July 23, 2009 to make submissions on the respondent’s request. None were received.

DECISION

4In Beaver v. Dr. Hans Epp Dentistry Professional Corp., 2008 HRTO 282 at para. 10, the Tribunal explained the significance of section 34(11):

Section 34(11) is intended to eliminate duplicate court and Tribunal proceedings alleging breaches of the Code. An applicant’s ability to bring an application at the Tribunal is removed where there is an ongoing court proceeding in which he or she has made a claim for remedies based upon the same alleged infringement of the Code, where a court has finally determined the issue of whether the right has been violated, or where the matter has been settled. Section 34(11) is triggered by the applicant’s decision to raise the Code and seek remedies for its violation in a court action.

5The question for me to determine is whether the applicant decided to seek remedies for alleged breaches of the Code by way of a court action. The factual similarity between the two proceedings is irrelevant to the question of the Tribunal’s jurisdiction to consider the matter.

6Having reviewed the Application and the Statement of Claim, which was attached to the Application, I find that the applicant has not triggered section 34(11) because she has not raised the Code in her civil action. Similarity in the facts does not amount to duplication of legal issues. The determinative factor in this decision is that the Claim makes no mention of the Code or of any allegations of discrimination. Duplication of legal proceedings arising out of the same facts is not a basis for declining jurisdiction over an Application; see Baker v. Sears Canada, 2009 HRTO 1014 at para. 12:

The fact that the case could potentially have been commenced as a single court action alleging both wrongful dismissal and discrimination is a matter of personal choice the legislature has left up to individuals bringing such cases. It is not within the Tribunal’s jurisdiction or mandate to instruct parties where to bring their cases. The Tribunal’s function is to determine whether it has the jurisdiction to accept the Application as filed. In this case, I find the Tribunal does have jurisdiction over the matter.

7The question of whether the Tribunal has the jurisdiction to deal with an Application is distinct from the issue of whether it should defer dealing with an Application in its jurisdiction in the face of concurrent legal proceedings. The similarity of the underlying facts may be relevant to the Tribunal’s decision on deferral of the Application. The applicant has not made submissions on the issue of deferral. She shall be given an opportunity to make such submissions.

ORDER

8The request for early dismissal pursuant to section 34(11) is refused. The respondents are ordered to file a full response within 30 days of this Decision. The applicant may file a Reply not later than 14 days after the Tribunal sends her the Response. She must also file submissions on the respondents’ request to defer the Application by the date set for filing a Reply.

9I am not seized.